Citation Nr: 0616787
Decision Date: 06/08/06 Archive Date: 06/26/06
DOCKET NO. 04-28 877 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to an effective date earlier than June 9,
2003, for the granting of service connection and the
assignment of a 10 percent disability evaluation for
peripheral neuropathy of the left lower extremity.
2. Entitlement to an effective date earlier than June 9,
2003, for the granting of service connection and the
assignment of a 10 percent disability evaluation for
peripheral neuropathy of the right lower extremity.
3. Entitlement to an increased evaluation for traumatic
arthritis of the right ankle with limitation of motion,
currently evaluated as 20 percent disabling.
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had active service from May 1976 to May 1981 and
from October 1982 to September 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2003 rating determination of
the Winston-Salem, North Carolina, Department of Veterans
Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. In an April 1998 rating determination, the RO denied
service connection for peripheral neuropathy of the lower
extremities. The veteran was notified of this decision that
same month and did not perfect his appeal. Thus, the
decision became final.
2. In a December 2001 rating determination, the RO denied
service connection for peripheral neuropathy of the lower
extremities. The veteran was notified of this decision in
January 2002 and did not perfect his appeal. Thus, the
decision became final.
3. In a letter received on June 9, 2003, the veteran
initially requested that the claim for service connection for
peripheral neuropathy of the lower extremities be reopened.
4. The veteran's right ankle disability is manifested by
limitation of motion without ankylosis.
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to June 9, 2003,
for service connection and the assignment of a 10 percent
evaluation for peripheral neuropathy of the left lower
extremity have not been met. 38 U.S.C.A. § 5110 (West 2002);
38 C.F.R. § 3.400 (2005).
2. The criteria for an effective date prior to June 9, 2003,
for service connection and the assignment of a 10 percent
evaluation for peripheral neuropathy of the right lower
extremity have not been met. 38 U.S.C.A. § 5110 (West 2002);
38 C.F.R. § 3.400 (2005).
3. The criteria for an evaluation in excess of 20 percent
for traumatic arthritis of the right ankle with limitation of
motion have not been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.71a, Codes 5270, 5271
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159,
3.326(a) (2005).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim. 38 U.S.C.A. § 5103(a)
(West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Discussions in the June 2003 VCAA letter informed the veteran
of the information and evidence necessary to substantiate the
increased rating claim. The VCAA letter also told the
veteran what types of evidence VA would undertake to obtain
and what evidence the veteran was responsible for obtaining.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The June 2003 letter notified the veteran of the evidence
needed to substantiate the claim and told him to send the
needed evidence. This communications served to tell the
veteran that he should furnish any pertinent evidence in his
possession.
The United States Court of Appeals for Veterans Claims
(Court) has also held, that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
The Court held that upon receipt of an application for a
service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
VCAA notice should be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004). Such is the case here.
The June 2003 letter did not provide him with notice of the
type of evidence necessary to establish an effective date for
the disability on appeal. Despite the inadequate notice
provided to the veteran on these latter two elements, the
Board finds no prejudice to the veteran in proceeding with
the issuance of a final decision. See Bernard v. Brown, 4
Vet. App. 384, 394 (1993) (where the Board addresses a
question that has not been addressed by the agency of
original jurisdiction, the Board must consider whether the
veteran has been prejudiced thereby). Since an increased
rating is not being granted, an effective date is not being
set.
The veteran has not been provided with VCAA notice regarding
the claims for earlier effective dates. In Dingess, the
Court held that once service connection is granted the claim
is substantiated, and further notice as to the rating or
effective date elements is not required. Id. (In cases where
service connection has been granted and an initial disability
rating and effective date have been assigned, the typical
service-connection claim has been more than substantiated--it
has been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled).
Furthermore, the Board finds that there has been compliance
with the assistance provisions set forth in the new law and
regulation. All available service medical, VA, and private
treatment records have been obtained. No other relevant
records have been identified. The veteran was also afforded
several VA examinations.
Further efforts to assist the veteran in the development of
his claim are not reasonably likely to assist the veteran in
substantiating his claim. The claim will be considered based
on the evidence of record.
Earlier Effective Date
Under the applicable criteria, the effective date of an award
of disability compensation based on an original claim for
direct service connection or a claim reopened after final
disallowance shall be the date following separation from
active service or the date entitlement arose if the claim is
received within one year after separation from service;
otherwise, it shall be the date of receipt of the claim, or
the date entitlement arose, whichever is later. 38 U.S.C.A.
§ 5110 (West 2002); 38 C.F.R. § 3.400 (2005).
The effective date of an award of disability compensation
based on new and material evidence received after a final
disallowance shall be the date of receipt of the new claim or
the date entitlement arose, whichever is later. 38 C.F.R.
§ 3.400 (2005). The effective date of award of disability
compensation based on a reopened claim under the provisions
of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be
the date of receipt of the claim or the date entitlement
arose whichever is later. 38 C.F.R. § 3.400(r) (2005).
The law grants a period of one year from the date of the
notice of the result of the initial determination for
initiating an appeal by filing a notice of disagreement;
otherwise, that determination becomes final and is not
subject to the revision on the same factual basis in the
absence of CUE. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§ 3.105(a) (2005).
Any communication or action, indicating an intent to apply
for one or more benefits under the laws administered by the
Department of Veterans Affairs, from a claimant, or others,
may be considered an informal claim. Such informal claim
must identify the benefit sought. 38 C.F.R. § 3.155 (2005).
A review of the record reveals that the RO denied service
connection for peripheral neuropathy in April 1998. The
veteran was notified of this decision that same month and did
not appeal. Thus, the decision became final. 38 U.S.C.A.
§ 7105.
In December 2001, the RO again denied service connection for
peripheral neuropathy of the lower extremities. The veteran
was notified of this decision in January 2002 and did not
appeal. This decision also became final. 38 U.S.C.A.
§ 7105.
In a letter received in January 2002, the veteran
acknowledged receipt of a letter dated December 13, 2001,
which advised him of the December 2001 rating decision. He
made no reference to the denials of service connection.
No further correspondence was received from the veteran on
the issue of service connection for peripheral neuropathy of
the lower extremities until June 9, 2003, when the veteran
again requested service connection for peripheral neuropathy
of the lower extremities.
In an August 2003 rating determination, the RO granted
service connection for peripheral neuropathy of the right and
left lower extremities and assigned a 10 percent disability
evaluation for each extremity, with an effective date of June
9, 2003.
In his August 2003 notice of disagreement, the veteran argued
that he had been seeking service connection for peripheral
neuropathy since 1987, and that he should not be penalized
for the failure to submit a timely appeal of the December
2001 rating decision.
The relevant facts are not in dispute. The veteran did not
submit a notice of disagreement within one year of the notice
of the December 2001 denial of service connection for
peripheral neuropathy. It is also not disputed that the
request to reopen his claim of service connection for
peripheral neuropathy was received on June 9, 2003.
The law is clear that VA cannot grant an effective date
earlier than the claim to reopen. Accordingly, the law
dictates that the effective date for the grant of service
connection and the 10 percent evaluations is June 9, 2003.
The appeals for earlier effective dates are denied.
Right Ankle
Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. In order to evaluate the level of disability and any
changes in condition, it is necessary to consider the
complete medical history of the veteran's condition.
Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
For disabilities evaluated on the basis of limitation of
motion, VA is required to apply the provisions of 38 C.F.R.
§§ 4.40, 4.45 (2005), pertaining to functional impairment.
The Court has instructed that in applying these regulations
VA should obtain examinations in which the examiner
determined whether the disability was manifested by weakened
movement, excess fatigability, incoordination, or pain. Such
inquiry is not to be limited to muscles or nerves. These
determinations are, if feasible, be expressed in terms of the
degree of additional range-of-motion loss due to any weakened
movement, excess fatigability, incoordination, or pain.
DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v.
Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2005).
The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for
consideration where, as in this case, the veteran is in
receipt of the highest rating based on limitation of motion
and a higher rating requires ankylosis. Johnston v. Brown,
10 Vet. App. 80, 84-5 (1997).
Diagnostic Code 5003 provides that degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved (DC 5200 etc.).
When, however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by limitation of motion, to be combined, not added under
Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion, a 10 percent evaluation is
assigned where X-ray evidence shows involvement of two or
more major joints or 2 or more minor joint groups. Where
there is X-ray evidence of involvement of 2 or more major
joints or 2 or more minor joint groups, with occasional
incapacitating exacerbations, a 20 percent evaluation is
assigned. Note (1) to Diagnostic Code 5003 states that the 20
and 10 percent ratings based on X-ray findings, above, will
not be combined with ratings based on limitation of motion.
Id.
Traumatic arthritis is evaluated under the criteria of
Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code
5010.
Diagnostic Code 5271 provides for a 10 percent rating for
moderate limitation of motion of the ankle and a 20 percent
rating for marked limitation of motion of the ankle.
38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of
ankle motion is dorsiflexion to 20 degrees and plantar
flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II.
Ankylosis of the ankle in plantar flexion at less than 30
degrees warrants a 20 percent rating. A 30 percent rating is
warranted if the ankylosis is in plantar flexion between 30
and 40 degrees or in dorsiflexion between 0 and 10 degrees.
A 40 percent rating is warranted if there is ankylosis of the
ankle in plantar flexion at more than 40 degrees, or in
dorsiflexion at more than 10 degrees, or with abduction,
adduction, inversion or eversion deformity. 38 C.F.R.
§ 4.71a, Diagnostic Code 5270.
Service connection is currently in effect for traumatic
arthritis of the right ankle with limitation of motion, which
has been assigned a 20 percent disability evaluation.
Outpatient treatment records received in conjunction with the
veteran's claim reveal that he was found to have bilateral
subtalar arthritis at the time of an April 2003 visit.
In August 2003, the veteran was afforded a VA examination.
At the time of the examination, the veteran reported having
pain in his right ankle. He noted that on a good day he
could walk up to one-half mile. He stated that the ankle
would swell up to twice the size of normal. The veteran
indicated that he tried to avoid stairs as much as possible.
Physical examination revealed limited range of motion for the
ankle. The veteran had 5 degrees of dorsiflexion and 20
degrees of plantar flexion. He was unable to walk on his
toes or heels. A diagnosis of arthritis of the ankles, more
severe on the right, was rendered. The examiner noted that
the veteran had had three operations on his right ankle and
that the scars were well-healed over the medial malleolus.
In his September 2003 notice of disagreement, the veteran
argued that he had significant joint space loss, and that his
right ankle condition had worsened. He reported that he had
episodes of severe swelling in his ankles which took two to
three days to recover from.
The veteran was afforded an additional VA examination in
April 2004. At the time of the examination, the veteran
reported ankle pain that he rated as 6-7 on a scale from 1-10
with associated swelling, stiffness, redness, and giving way
at times. He stated that his ankle was very weak and easily
inverted.
The veteran indicated that he had flare-ups when standing,
walking, or carrying things. He noted that he had to sit
down when he experienced these problems. The veteran
reported using crutches at times. The veteran had no
episodes of dislocation. He was noted to be retired. He was
limited in walking and standing and could not run as a result
of his ankle problems.
Physical examination revealed that the right ankle
dorsiflexed to 0 degrees and plantar flexed to 60 degrees,
with pain at the extremes of dorsiflexion and plantar
flexion. There was edema of the ankle and some mild
tenderness around the malleoli. Following exercise,
dorsiflexion was to 0 degrees and plantar flexion was to 45
degrees, with pain limiting further flexion.
The examiner stated that there was no objective evidence of
painful motion, but there was edema. There was no effusion,
instability, or weakness. There was also no redness,
abnormal heat, abnormal movement, or guarding of movement.
The veteran had a normal gait with no callosities and no
breakdowns of the foot. There was also no ankylosis present.
There were also no constitutional signs of inflammatory
arthritis. X-rays of the ankle were negative. A diagnosis
of chronic ankle strain was rendered.
In his July 2004 substantive appeal, the veteran the April
2004 VA examiner's report that X-rays were normal and there
were not signs of inflammatory arthritis.
The veteran has been given the highest possible disability
evaluation for limitation of ankle motion under Diagnostic
Code 5271.
The reports of 0 degrees of dorsiflexion could be read as
saying that the veteran has no motion in that direction. He
does, however, have significant range of plantar flexion. He
thus does not have ankylosis. Ankylosis is "immobility and
consolidation of a joint due to disease, injury, or surgical
procedure." Colayong v. West, 12 Vet App 524 (1999) (citing
DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at
86). Even if ankylosis were to be conceded, the veteran's
ankle would be in less than 30 degrees of plantar flexion.
It would thus merit no more than a 20 percent rating. Thus,
an increased evaluation is not warranted under Diagnostic
Code 5270.
While the veteran has disputed some of the findings reported
on the April 2004, VA examination, these findings do not
pertain to the specific rating criteria for the right ankle
disability. The ankle disability is rated on the basis of
limitation of motion and the ranges of motion reported on the
examination were not disputed.
The Board notes that the veteran has complained of continuous
pain in his ankle throughout the entire appeal period, and
has reported flare ups.
The examinations have reported pain only on the extremes of
motion. In any event, the veteran is in receipt of the
highest rating for limitation of motion and a higher rating
requires ankylosis. Hence, the provisions of 38 C.F.R.
§§ 4.40, 4.45 are not applicable.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing that the service-connected
right ankle disorder has required in frequent periods of
hospitalization. The veteran is currently not employed (his
claim for a total rating for compensation purposes based on
individual unemployability was denied in July 2004. Marked
interference with current employment has not been
demonstrated. In the absence of such factors, the Board
finds that the criteria for submission for assignment of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are
not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
As discussed, the preponderance of the evidence is against
the claim, reasonable doubt does not arise and the claim is
denied. 38 C.F.R. §§ 4.3, 4.7, 4.21 (2005); 38 U.S.C.A.
§ 5107(b) (West 2002).
ORDER
An effective date earlier than June 9, 2003, for the grant of
service connection and the assignment of a 10 percent
disability evaluation for peripheral neuropathy of the left
lower extremity is denied.
An effective date earlier than June 9, 2003, for the grant of
service connection and the assignment of a 10 percent
disability evaluation for peripheral neuropathy of the right
lower extremity is denied.
An evaluation in excess of 20 percent for traumatic arthritis
of the right ankle with limitation of motion is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs